In the Matter of Susan Ll. v. Victor Ll.

• Decision Date: 20 October 2011
• Parties: In the Matter of SUSAN LL., Appellant,v.VICTOR LL., Respondent.(And Two Other Related Proceedings.)
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 1116
931 N.Y.S.2d 189
2011 N.Y. Slip Op. 07332

In the Matter of SUSAN LL., Appellant,
v.
VICTOR LL., Respondent.(And Two Other Related Proceedings.)

Supreme Court, Appellate Division, Third Department, New York.

Oct. 20, 2011.

[931 N.Y.S.2d 189]

Rachel Rappazzo, Schenectady, for appellant.Christine E. Nicolella, Delanson, attorney for the child.Before: MERCURE, J.P., ROSE, MALONE JR., KAVANAGH and GARRY, JJ.GARRY, J.

[88 A.D.3d 1116] Appeal from an order of the Family Court of Schoharie County (Bartlett III, J.), entered October 4, 2010, which, among other things, dismissed petitioner's application, in three proceedings pursuant to Family Ct. Act articles 6 and 8, to modify a prior order of visitation.

The parties were married in 2000 and are the parents of a son (born in 2002). Upon their divorce, they stipulated to joint custody of the child, with primary physical custody to petitioner (hereinafter the mother) and visitation to respondent (hereinafter the father) in Florida, where he has resided since 2005. In June 2007, Family Court (Foster, J.H.O.) granted the mother's [88 A.D.3d 1117] petition to modify the prior order by requiring the father's visitation to take place in New York. In April 2010, the mother commenced a family offense proceeding alleging that the father was harassing her through telephone calls and e-mails, and in May 2010 she petitioned for modification of the prior order, seeking suspension of the father's visitation. The father cross-petitioned for visitation in

[931 N.Y.S.2d 190]

Florida. Family Court (Bartlett III, J.) dismissed the mother's modification petition, dismissed the father's cross petition for visitation in Florida, and established a schedule for his visitation in New York. Further, among other things, the court required the father to participate in counseling and gave him permission to petition for visitation in Florida after May 2011 if he so chose.¹ The mother appeals, with the support of the attorney for the child.

“ ‘[A]n existing visitation order will be modified only if the applicant demonstrates a change in circumstances that reflects a genuine need for the modification so as to ensure the best interests of the child’ ” ( Matter of Braswell v. Braswell, 80 A.D.3d 827, 829, 914 N.Y.S.2d 749 [2011], quoting Matter of Taylor v. Fry, 63 A.D.3d 1217, 1218, 880 N.Y.S.2d 721 [2009] ). A change in circumstances was established by the breakdown of the relationship between the father and child, such that the child developed a strong preference not to visit the father ( see Matter of Burch v. Willard, 57 A.D.3d 1272, 1273, 870 N.Y.S.2d 141 [2008]; Matter of Oddy v. Oddy, 296 A.D.2d 616, 617, 745 N.Y.S.2d 584 [2002]; Matter of Bowers v. Bowers, 266 A.D.2d 741, 742, 698 N.Y.S.2d 771 [1999] ) and by the father's failure to visit the child for more than a year before the hearing ( compare Matter of Whitcomb v. Seward, 86 A.D.3d 741, 742–743, 926 N.Y.S.2d 764 [2011] ). Thus, Family Court properly conducted an analysis of the child's best interests. Nonetheless, the mother contends that the court erred in this inquiry by refusing to suspend the father's visitation. We disagree.

Visitation with a noncustodial parent is presumed to be in a child's best interests and is denied “ ‘only under the most compelling circumstances where visitation would be detrimental to the child's welfare’ ” ( Matter of Brown v. White, 3 A.D.3d 743, 744, 770 N.Y.S.2d 809 [2004], quoting Matter of Shaun X., 300 A.D.2d 772, 773, 751 N.Y.S.2d 631 [2002] ). A clinical social worker who had treated the child for several years testified that the child was disturbed by ongoing conflict between the mother and the father. She testified that during her treatment of the...